The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions

Transcription

1 From the SelectedWorks of Wen-Chen Chang Fall September, 2008 The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions Wen-Chen Chang Jiunn-rong Yeh, National Taiwan University Available at:

2 The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions Jiunn-Rong Yeh * Wen-Chen Chang * Abstract: Globalization and regional remapping have made unprecedented challenges to traditional understandings of constitutional and international laws. Not only constitutions may function across national borders but also international treaties and regional cooperative frameworks may deliver constitutional or quasi-constitutional functions. This paper aims at theorizing recent developments of transnational constitutionalism by examining its features, functions and characteristics. We find that transnational constitutionalism features transnational constitutional arrangements, transnational judicial dialogues and global convergence of national constitutions. Notwithstanding main functions in facilitating a global market, the development of transnational constitutionalism nevertheless undermines accountability, democracy and rule of law at both domestic and transnational levels. However, this paper proposes both domestic and transnational institutional checks and balances as solutions. It argues for a complex of domestic and transnational institutional interactions as functional checks and balances with transnational constitutionalism. I. Foreword...2 II. The Emergence of Transnational Constitutionalism...5 A. Features Transnational constitutions or quasi-constitutional arrangements Transnational judicial dialogues and references Global convergence of national constitutions...13 B. Functions Management of global market Substitution of absolute sovereignty...18 * Professor of law, National Taiwan University, College of Law; JSD, Yale Law School. jryeh@ntu.edu.tw * Associate Professor of Law, National Taiwan University, College of Law; JSD, Yale Law School. wenchenchang@ntu.edu.tw 1

3 3. Facilitation of multiple dialogues...20 C. Characteristics: relativity The relativity between nation-states and partial units The relativity between public and private powers The relativity between external and internal norms/institutions...26 D. Diverse perspectives Foundationalism Reflectionalism Constructivism...32 III. Challenges and Solutions...33 A. Challenges: accountability, democratic deficit, rule of law Accountability Democratic deficit Rule of law...36 B. Solutions: domestic/transnational institutional checks and balances Domestic institutional checks and balances Transnational institutional checks and balances...44 IV. Conclusion...50 I. Foreword The world of constitutionalism has changed dramatically in the recent years. Globalization and regional remapping in response to new alliances of emerging democracies are primary driving forces. In the beginning of this new millennium, one of the most important constitutional enterprises that drew a global attention was the writing of the European Constitution. The Constitution for the European Union (EU), a supranational organization rather than a nation-state, tested our traditional notion that only nation-states could write constitutions. 1 The enactment of the EU 1 The official name of the European Constitution is the Treaty of Establishing a Constitution for Europe. Whether it is a treaty between nations or a federal constitution between states is a central debate surrounding the making of the European Constitution. See infra Part II.A.1.and accompanying notes. 2

4 Constitution eventually failed. 2 The constitution-becoming of the EU, however, continued to progress, moved not only by formal enactments but also perhaps more importantly by judicial interpretations and informal practices. 3 We also begin to realize that many international regimes or regional cooperative frameworks are now delivering constitutional or quasi-constitutional functions in certain aspects. 4 The Charter of the United Nations (UN) is now being described as a constitution for the international community, while the World Trade Organization (WTO) being an economic charter. Even a regional mainly economic compact such as the North America Free Trade Agreement (NAFTA) 5 is characterized by some as being constitutional. Mostly evident of constitutional functions are international human rights instruments that are now entrenching into domestic legal orders by some creative ways that were simply unimaginable in the past. On the one hand, certain rights have become jus cogens (compelling, binding law) or obligation erga omnes (a protecting duty for all states) while others obtain the status of customary international law. 6 On the other hand, the domestic constitutionalization of international treaties has facilitated this trend and not surprisingly, fueled intense 2 During the ratification process, the French and Dutch voters rejected respectively the constitutional draft in After the two-year ratification process had passed, the heads of member states signed the Treaty of Lisbon on December 13, 2007 as a proposal to reform the existing EU structure. Many provisions in the Treaty of Lisbon are reflective of the constitutional draft. The date set for ratification for the Treaty of Lisbon is on January 1, For updates of this process, see 3 See Wen-Chen Chang, Constructing Federalism: the EU and US Models in Comparison, 35 EURAMERICA 733 (2005) (arguing the constitution-becoming process of the EU relies largely upon judicial construction and elite efforts). 4 See discussion infra Part II.A.1. and accompanying notes. 5 The North American Free Trade Agreement is a trade agreement among Canada, the United States, and Mexico that became effective in January 1, See discussion infra Part II.A.1. 3

5 debates. 7 Some national constitutions directly embrace international laws to be part of their laws. Many more national judicial bodies have referred to international treaties or transnational norms to which their national political counterparts have not yet agreed. Not to mention transnational judicial dialogue abound that seems to create a constitutional regime merely through conversations between judges. Sovereign boundaries against which traditional constitutions are drawn now seem gradually being crossed over. Increasingly than ever, many transnational arrangements are assuming institutional as well as dialectical functions within, between and beyond nation-states. 8 Transnational constitutionalism, as some started to characterize these recent transnational developments across national borders, clearly depicts a changing terrain of modern constitutionalism. 9 Faced with these new developments, we are left to wonder whether and to what extent our traditional understanding of constitutions and their functions are altered both conceptually and practically by these emerging transnational features. How would modern constitutional lawyers cope with these new developments? What lessons shall we learn from these rather distinctive dynamics that began recently? This article is attempted at theorizing recent transnational phenomena across national borders and responding to new challenges posed by these new developments. Following this, the second part analyzes the development of transnational constitutionalism by identifying its distinctive features, functions, characteristics and 7 See discussion infra Parts II.A.3. 8 See discussion infra Part II.B.3. & II. C.1. 9 See e.g. NICHOLAS TSAGOURIAS ED., TRANSNATIONAL CONSTITUTIONALISM: INTERNATIONAL AND EUROPEAN MODELS (2007). This edited volume invites scholars to reflect of transnational constitutional features and most focus is, not surprisingly, the development of the European constitutional regime. 4

6 perspectives. The third part examines to what extent and in what ways the development of transnational constitutionalism challenges to our traditional understanding of modern constitutional laws. It addresses three problems: accountability, democratic deficit and rule of law. We then try to suggest possible solutions based upon a complex body of transnational and domestic institutions that may provide checks and balances in creative ways unimaginable before. We conclude with a perplexing, but nevertheless positive, view of transnational constitutionalism that creates new possibilities for a coming generation of constitutional as well as international legal scholars. II. The Emergence of Transnational Constitutionalism Driven by globalization and its related complexities, constitutionalism has developed beyond its traditional confinement, nation-states. 10 Today, constitutionalism takes place not only within nation-states but also above and beyond nation-states. Perhaps even more importantly, it serves as institutional and dialectical functions at both domestic and transnational levels. In the following, we shall define what we mean by transnational constitutionalism, identify its particular functions, argue for its distinctive characteristics and examine this development from diverse perspectives. A. Features How exactly constitutionalism has developed above and beyond national boarders? Today, many constitutions and quasi-constitutional arrangements have 10 Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV. 771, (1997) (arguing that constitutionalism may develop from treaty to constitution or vise versa). See generally GAVIN ANDERSON, CONSTITUTIONAL RIGHTS AFTER GLOBALIZATION (2005) (arguing that constitutionalism has developed beyond nation-states and advocating legal pluralism as a solution). 5

7 arisen to serve critical institutional as well as dialectical functions that connected states and non-states in many traditionally unexpected ways. Three features, as we identify in the following, are distinctive in understanding this new phenomenon. They include: first, the development of transnational constitutions or quasi-constitutional arrangements, second, the abundance of transnational judicial dialogues, and lastly, a global convergence of national constitutions. 1. Transnational constitutions or quasi-constitutional arrangements The first feature of transnational constitutionalism is that constitutions are now being developed even beyond nation-states. These transnational constitutions or quasi-constitutional regimes are developed as a result of constitutional enactment across national borders or through the constitutionalization process of international regimes. One of the most important examples with regard to a constitutional enactment across national borders is of course the writing of the EU Constitution. Notwithstanding a supranational organization, the EU launched the constitution-making process that began in this century but failed later with its ratification. The Constitutional Treaty 11 despite its rather ambiguous terminology was crafted carefully in a process more like constitution-making than treaty signing. It was drafted in a called Convention, passed by an intergovernmental conference in Rome and required to be ratified by member states where popular referenda might be called. It was not only deemed as a Constitution but also expected to function like a Constitution: constructing European citizenship, facilitating democracy, providing 11 The official name is the Treaty of Establishing a Constitution for Europe. 6

8 effective governance and protecting fundamental rights in the European Union. 12 While organizing principles may be different from those of domestic constitutions, the EU Constitution nevertheless included standard components of any constitutions from a bill of rights, judicial review, federalism, to separation of powers, and even some independent commissions or agencies. 13 Even though the enactment of the EU Constitution eventually failed, the direct effect and supremacy status of the EU regulations recognized and sustained by the European Court of Justice (ECJ) already prompted the EU regime to the constitutional level. 14 Moreover, many international regimes or regional cooperative frameworks are now also delivering constitutional or quasi-constitutional functions in key aspects. Treaties or agreements that are regulated by international laws and operating traditionally among states have begun to present features of traditional constitutionalism: rights protection, power constraints, and even judicial review, to 12 The debate as to whether the European Union needs a Constitution was best presented by Dieter Grimm and Juergen Habermas. See Dieter Grimm, Does Europe Need a Constitution?, 1 EUR. L. J. 282 (1995) (arguing that while the making of the EU Constitution would not necessarily revolve its democratic deficit, but it was nevertheless inevitable); Juergen Habermas, Remarks on Dieter Grimm s Does Europe Need a Constitution, 1 EUR. L. J. 303 (1995) (arguing that a constitution-making process that is democratic and deliberative would construct a new European identity and resolve its democratic deficit). See also Michael Wilkinson, Who s Afraid of a European Constitution, 30 EUR. L. REV. 297 (2005) (arguing that while there are some reasonable concerns against European state and constitution, it is more important to contemplate substitutive approaches); but J.H.H. Weiler & Joel P. Trachtman, European Constitutionalism and its Discontents, 17 Nw. J. Int'l L. & Bus. 354 (1996) (arguing that the European constitutionalism does not mark the creation of a new legal order but a mutation of old international law). See generally J.H.H. WEILER, THE CONSTITUTION OF EUROPE: DO THE NEW CLOTHES HAVE AN EMPEROR? AND OTHER ESSAYS ON EUROPEAN INTEGRATION (1999); ERIK O. ERIKSEN & JOHN E. FOSSUM, DEMOCRACY IN THE EUROPEAN UNION: INTEGRATION THROUGH DELIBERATION? (2000); LARRY SIEDENTOP, DEMOCRACY IN EUROPE (2001). 13 Wen-Chen Chang, supra note 3 (arguing both the US and EU constitutional models have developed to federal arrangements through different mechanisms). See also generally KALYPSO NICOLAIDIS & ROBERT HOWSE EDS., THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION (2001). 14 The more detailed discussion on the direct effect and primacy status of the EU regulation and in what ways these doctrine may work out with checks and balances between transnational and national institutions, see III.B.1. and also MONICA CLAES, THE NATIONAL COURT S MANDATE IN THE EUROPEAN CONSTITUTION (2006) (arguing that direct effect and supremacy of the EU laws have made the EU a constitutional entity and the ECJ a constitutional court). 7

9 name just a few. 15 For instance, the most popular and powerful mechanism for global trade the WTO and related agreements has been characterized by some as a global economic constitution. 16 The guarantee of contractual freedom and private ownership and the establishment of the Dispute Settlement Body in particular, the Appellate Body for the enforcement of treaty-related rights are reminiscent of liberal constitutions that have a bill of negative rights and the institution of judicial review. 17 Similarly, the UN Charter coupled with major UN human rights treaties, despite being criticized as toothless in the past, has been revitalized and regarded as a functioning constitutional regime. 18 Even regional agreements, such as the NAFTA, have already begun to perform recognizable constitutional functions. The instrument draws the line by which trade-related policy-making powers are distributed top-down and private trading powers are given primacy. It is similar to what the principle of economic 15 See Deborah Z. Cass, The Constitutionalization of International Trade Law, 12 EUR. J. INT L L. 39 (2001) (arguing the international trade regime has functioned like a constitutional regime mostly in the function of judicial review); Bardo Fassbender,The United Nations Charter as Constitution of the International Community, 36 COLUM. J. TRANSNAT L L (1997) (arguing that United Nations Charter has obtained fully characters of a constitution required by modern constitutionalism). 16 Deborah Z. Cass, id. See also Markus Krajewski, Democratic Legitimacy and Constitutional Perspective of WTO law, 3 J. WORLD TRADE 167 (2001) (arguing that the WTO functions like a world economic constitution). But cf Jeffrey L. Dunoff, Why Constitutionalism Now? Text, Context and the Historical Contingency of Ideas, 1 J. INT'L L. & INT'L REL. 191 (2005) (arguing that the calls for a world trade constitution will trigger the very politics that constitutionalism seeks to avoid). 17 Deborah Z. Cass, id. 18 Bardo Fassbender,The United Nations Charter as Constitution of the International Community, 36 COLUM. J. TRANSNAT L L (1997) (arguing that United Nations Charter has obtained fully characters of a constitution required by modern constitutionalism); William H. Meyer & Boyka Stefanova, Human Rights, the UN Global Compact, and Global Governance, 34 CORNELL INT'L L.J. 501 (2001) (arguing that international human rights treaties and their enforcement mechanism within UN constitute a comprehensive human rights regime on a global scale); Ernst-Ulrich Petersmann, How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society, 20 MICH. J. INT L L. 1 (1998) (arguing a constitutionalization of international human rights treaties). 8

10 federalism and freedom of private contract would demand within any domestic constitutional regimes. 19 As international treaties perform constitutional or quasi-constitutional functions, certain international norms particularly human rights instruments have begun to obtain unprecedented recognition and become far more entrenched into domestic legal orders. 20 For instance, prohibition of genocide, slave trade, and to certain extent terrorism is now deemed as jus cogens that binds all states. Essential human rights such as human dignity have given rise to obligation erga omnes that demand all states to protect and to punish their violations such as crime against humanity. 21 Many international human rights are now being regarded as customary international laws that are binding without consents. For example, the right of an accused to be present for his/her trial and to be privy to the evidence against him even during the 19 David Schneiderman, Constitution or Model Treaty? Struggling over the Interpretive Authority of NAFTA, in THE MIGRATION OF CONSTITUTIONAL IDEAS 294 (Sujit Choudhry ed., 2006) (contending that there exists a constitution mode in interpreting NFTA but argues against this constitutional mode as it would imperil rather than benefit free trades in the region); Lori M. Wallach, Accountable Governance in the Era of Globalization: the WTO, NAFTA, and International Harmonization of Standard, 50 U. KAN. L. REV. 823 (2002) (arguing that to the extent that regional frameworks such as NAFTA are binding and functioning like constitutions, they must be upheld to the standard of democratic accountability). 20 Harold Koh, International Law as Part of Our Law, 98 AM. J. INT L L. 43 (2004); Peter J. Spiro, Treaties, International Law, and Constitutional Rights, 55 STAN. L. REV (2003) (arguing that the supremacy of constitution should be reexamined in the world as a single community with a shared set of core values); Joan F. Hartman, 'Unusual' Punishment: The Domestic Effects of International Norms Restricting the Application of the Death Penalty, 52 U. CIN. L. REV. 655 (1983) (arguing that denying the binding nature of customary international law would be definitely inadequate); Alexander Aleinikoff, International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate, 98 AM. J. INT'L L. 91 (2004) (arguing that Congress should make customary international law applicable in federal courts). But see Ernest A. Young, The Trouble with Global Constitutionalism, 38 TEX. INT'L L.J. 527 (2003) (cautioning that a direct recognition of international treaties may change the decision-making structure on the American constitution); Joan L. Larsen, Importing Constitutional Norms from a "Wider Civilization": Lawrence and the Rehnquist Court s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 OHIO ST. L.J (2004) (arguing against the use of foreign and international law by the U.S. courts). 21 See IAN D. SEIDERMAN, HIERARCHY IN INTERNATIONAL LAW: THE HUMAN RIGHTS DIMENSION , (2001) (arguing the entire corpus of human rights law as jus cogens that binds all state and give rights to obligation erga omnes that demands state protection). 9

11 war time has been recognized as the customary international law by the U.S. Supreme Court in a recent decision. 22 Common Article 3 of the four Geneva Conventions that includes this right has widely been recognized as binding as customary international law. 23 Similar rights protection at peace time has long been recognized in the International Covenant on Civil and Political Rights (ICCPR) arguably regarded as customary international law. 24 In so far as these international norms in particular human rights instruments are directly binding without any domestic variations, they function as constitutional within the larger transnational community. They constitute both the limit to which states exercise their powers and the claim by which citizen may make their appeals to domestic or transnational courts. 2. Transnational judicial dialogues and references The second feature of transnational constitutionalism is the abundance of transnational judicial dialogues and references. Such conversations are threefold. One is domestic judicial reference to international norms including decisions by international tribunals. Another is domestic judicial reference to foreign laws of other nation-states including decisions of foreign national courts. The other is reference made by international tribunals to other international regimes or decisions by other international tribunals. 22 Hamdan v. Rumsfeld, 126 S. Ct. 2749, (2006) (stating that the right of an accused, absent disruptive conduct or consent, to be present for his/her trial and to be privy to the evidence against him is indisputably part of customary international law). 23 This stand seems implied at Hamdan v. Rumsfeld, id. At the same time, the body of international humanitarian law scholarship recognizes undisputedly this position. See STEINER & ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS (2 nd, 2000); HILAIRE MCCOUBREY, INTERNATIONAL HUMANITARIAN LAW: MODERN DEVELOPMENTS IN THE LIMITATION OF WARFARE (2 nd, 1998). 24 See e.g. Ian D. Seiderman, supra note 21, at

12 The domestic judicial reference to international norms and decisions comes from either constitutional mandate or judicial self-assertion. Some national constitutions in particular their bills of rights were enacted in accordance with or at least inspired by certain international documents. 25 Judicial reference to international norms or judicial decisions is consequently seen as a common practice. In the many new constitutions of third-wave democracies, a demand for judicial reference to international law or at least international human rights laws has often been made. 26 Some even directly pronounce that international laws are part of their domestic laws. 27 This domestic constitutionalization process of international norms has facilitated not only judicial conversation with external norms but also more importantly constitutional functions of international norms. The constitutionalization of international or even foreign norms may occur as a result of judicial self-assertion. Increasingly than ever, national judicial bodies have referred to international norms to which their national governments have not yet agreed or even to foreign norms which are completely outside their jurisdiction. 28 For 25 See e.g. Vicki C. Jackson, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 MONT. L. REV. 15 (2004) (arguing many postwar constitutions are enacted with a peculiar influence by international human rights instruments passed immediately after war); WILLIAM A. SCHABAS, INTERNATIONAL HUMAN RIGHTS LAW AND THE CANADIAN CHARTER (1996) (arguing that the writing of the Charter was greatly influenced by international human rights instruments). 26 See V.S. Vereshchetin, Some Reflections on the Relationship Between International Law and National Law in the Light of New Constitutions, in CONSTITUTIONAL REFORM AND INTERNATIONAL LAW IN CENTRAL AND EASTERN EUROPE 5-13 (Rein Müllerson, Malgosia Fitzmaurice & Mads Andenas eds., 1998). 27 For instance, Article 39 of South African Constitution requires courts in interpreting the bill of rights consider international law. Article 7 of the Hungarian Constitution accepts the generally recognized principles of international law and requires the domestic legal system in harmony with the obligations under international law. 28 The discussion of this recent phenomena abound, see e.g. Cherie Booth & Max Du Plessis, Home Alone? The US Supreme Court and International and Transnational Judicial Learning, 2 EUR. HUM. RTS. L. REV. 127 (2005) (arguing that the US courts should join the vibrant transnational judicial dialogue to help advance the international legal order); David Zaring, The Use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 J. EMPIRICAL LEGAL STUD. 297 (2006) (presenting empirical 11

13 example, in some recent decisions, the U.S. Supreme Court made references to norms accepted in the Western European community and one provision in the ICCPR despite being made reservations. 29 By making normative links across national borders, courts are actually constructing a constitutional regime under which generally accepted norms regardless of their national or international origin become supreme law of a transnational land. Similar conversations may take place at a transnational level. Inevitably, national and transnational courts are competing with one another for better understandings of transnational legal arrangements. 30 National courts are shouldering noticeable works in interpreting transnational norms or even particular foreign provisions. 31 As a consequence, national courts might be seen as common courts of a large, transnational community. 32 And transnational norms are in turn becoming even more entrenched at national and transnational schemes. It is precisely through complex interactions between transnational and domestic decision-making bodies that transnational constitutionalism takes a surprisingly strong hold. 33 evidence on the U.S. courts citation to foreign courts); Janet K. Levit, A Tale of International Law in the Heartland: Torres and the Role of State Courts in Transnational Legal Conversation, 12 TULSA J. COMP. & INT'L L. 163 (2004) (arguing that state courts also play an important role in the transnational judicial dialogue). 29 Roper v. Simmons, 543 U.S. 551(2005). The reference to the norm accepted by the Western European community was also made in Atkins v. Virginia, 536 U.S. 304 (2002). 30 Jenny S. Martinez, Toward An International Judicial System, 56 STAN. L. REV. 429, 459 (2003). 31 If one likes to know current interpretive status of, say, the Refugee Convention or ICCPR, perhaps the best interpretive resource to look at is not the International Court of Justices but the Canadian Supreme Court. For, Canada literally incorporated Refugee Convention into its national law and its Supreme Court has been very active in referring to international human rights norms. See Marley S. Weiss, International Treaties and Constitutional Systems of the United States, Mexico and Canada, 22 MD. J. INT L L. & TRADE 185 (1998). 32 Jenny S. Martinez, supra note 30; MONICA CLAES, THE NATIONAL COURT S MANDATE IN THE EUROPEAN CONSTITUTION (2006) (arguing that national courts of member states have become common courts in the European Community). 33 See discussion infra Parts II.B.3. 12

14 3. Global convergence of national constitutions Finally, the third feature of transnational constitutionalism has to do with the triumph of constitutionalism in the end of the last century. Over two thirds of world population now lives under constitutional democracy, and a record number of nations in the last decade wrote or rewrote their constitutions consistent with modern constitutional principles. 34 Most nations west and east, north and south now have similar constitutions. Aside from traditional arrangements such as a bill of rights and the separation of powers, new institutions particularly responsible for guarding constitutions such as constitutional courts, human rights commissions and independent auditors have become common features of new constitutions. 35 Even nations without written constitutions have begun to enact one or at least some quasi-constitutional statues. As a result, insofar as constitutional adjudication is concerned, the distinction between common and civil law courts has become blurred. 36 The global convergence of constitutions has given rise to a common set of constitutional languages that are easily migrated and conversed by different national institutions. Constitutions may serve as platforms upon which national actors 34 The report of the democratic century by the Freedom House is available at (last visited Sep. 30, 2006). 35 As a result, comparative constitutionalism has recently become a rising area for research. See generally Symposium, Contextuality and Universality: Constitutional Borrowings on the Global Stage, 1 UNI. PENN. J. CONST. L. 583 (1999); Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L. J (1999); Paul W Kahn, Comparative Constitutionalism in a New Key, 101 MICH. L. REV (2003). Ruti Teitel, Comparative Constitutionalism in a Global Era, 117 HARV. L. REV (2004). 36 Ran Hirschl & Christopher L. Eisgruber, North American Constitutionalism?, 4 INT L J. CONST. L. 203 (2006) (comparing supreme courts of U.S., Canada, and Mexico and arguing their certain common features despite different legal systems); Thomas Poole, Back to the future? Unearthing the Theory of Common Law Constitutionalism, 23 Oxford J. Legal Stud. 435 (2003) (arguing a rise of common law constitutionalism centered on bills of rights and common law courts). 13

15 particularly judges may interact reciprocally with one another. 37 As judges and legal scholars gather around and converse with one another with a common set of constitutional languages, transnational normative consensus is more easily to be reached. 38 This dialectic function provided by transnational constitutionalism serves public as well as private actors. A common set of constitutional language may also help transnational entrepreneurs negotiate their contracts on easily understood terms and equal footing. It must be reminded that the aforementioned features of transnational constitutionalism do not function separately. Rather, they reinforce one anther in complex ways. The convergence of constitutional developments makes it easy for the rise of transnational constitutions, which stimulates even more transnational judicial dialogues. B. Functions Evidently transnational constitutionalism has risen to become a central phenomenon in the horizon of constitutional developments. It is not entirely clear, however, in what ways these new features would serve us. Are they functioning like traditional constitutions or deviant from them? Would they be more constructive and managerial in nature? The following discussion aims at discerning functions delivered 37 Most important actors are courts as well as sub-national units. See e.g. Anne-Marie Slaughter, A Typology of Transjudicial Communication, 29 U. RICH. L. REV. 99 (1994) (arguing that courts are talking to one another all over the world); Vicki C. Jackson, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 MONT. L. REV. 15 (2004) (using Montana's adoption of a human dignity clause from Germany as an example to argue that sub-national entities such as state may also play active roles in transnational constitutional dialogues). 38 Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L (2000) (arguing that judges have been interacting and communicating across borders with ideas exchanged and discussed); Ann-Marie Slaughter, A Global Community of Courts, 44 HARV. INT L L. 191 (2003); Paul Schiff Berman, Judges as Cosmopolitan Transnational Actors, 12 TULSA J. COMP. & INT'L L. 109 (2004) (arguing that judges think of themselves as cosmopolitan transnational actors and that is the best way to avoid legal imperialism). 14

16 by transnational constitutionalism, which include: management of global market, substitution of absolute sovereignty, and facilitation of multiple dialogues. 1. Management of global market It is undeniable that the rise of transnational constitutionalism has to do largely with economic globalization. The attempt of both advanced nations and fast developing ones to quickly expand the scale of a global market at an accelerating speed was the key driving force for the development of transnational legal cooperation and frameworks. 39 To ensure a broadened market to function, basic rules such as free exchange, market stability, contractual certainty and enforcement, even high respect of private property and other market-oriented rights must be transplanted from those more advanced countries to the newly included ones. 40 A broader transnational legal framework and numerous free trade agreements are products precisely responded to such demands. For example, WTO agreements are intended to ensure and police free trade rules for the global market. The EU, NAFTA, Association of South East Asian Nations (ASEAN), Asia Pacific Economic Cooperation (APEC), and other regional cooperative mechanisms perform exactly the same functions only for smaller regional areas. 39 See generally Andrew T. Guzman, 2004, Global Governance and the WTO, 45 Harv. Int'l L.J. 303 (2004) (arguing that the WTO may serve the basic legal framework for a globally extended market); Alfred C. Aman Jr., Privatization and the Democracy Problem in Globalization: Making Markets More Accountable through Administrative Law, 28 FORDHAM URB. L.J. 1477(2001) (arguing a need for developing global laws as a response to globalizing markets); Ernst-Ulrich Petersmann, Constitutionalism and International Organizations, 17 NW. J. INT'L L. & BUS. 398 (1996) (arguing that guaranteeing economic freedom, non-discrimination and rule of law extended liberal constitutional principles to the area of international economic policy-making and transnational economic activities). 40 Maxwell O. Chibundu, Globalizing the Rule of Law: Some Thoughts at and on the Periphery, 7 IND. J. GLOBAL. LEG. STUD. 79, (1999); Hans-Juergen Wagener, On the Relationship between State and Economy in Transformation, in CONSTITUTIONS, MARKETS AND LAW: RECENT EXPERIENCES IN TRANSITIONAL ECONOMIES 33-58, (Stefan Voigt & Hans-Juergen Wagener eds., 2002) 15

17 Intriguingly enough, transnational rules initially intended to be merely trade-related basics would often grow into a complex set of rules that looks more and more like constitutions. The European Union is the best example. Originally as merely a coal and steel free exchange framework between France and Germany, the EU whose cooperative functions now extend to so-called three pillars economic affairs, foreign and security policy, and criminal justice cooperation experienced a series of transformations in its organizational and functional forms. 41 During its course of development, the economic community quickly felt the need to establish a neutral arbitrator to enforce rules and mediate disagreements and the need to issue common policies and monitor proper executions. The ECJ, the European Commission and other institutions were thus created and through their workings in particular judicial enforcements and interpretations gradually transformed this economic organization into a constitutional or at least semi-constitutional regime. 42 Similar patterns displayed not only in the EU but also elsewhere. 43 The reference to constitutional or quasi-constitutional framework has even recently been made to the WTO, arguing the way that the Dispute Settlement Body and in particular, the Appellate Body read and interpret its own provisions and members domestic laws is making the WTO more and more like a constitution Wen-Chen Chang, supra note Id. See also J.H.H. WEILER, THE CONSTITUTION OF EUROPE: DO THE NEW CLOTHES HAVE AN EMPEROR? & OTHER ESSAYS ON EUROPEAN INTEGRATION (1999) (arguing that the EU has developed from a loose framework of economic cooperation to a constitutionalized political organization). 43 The United States, for example. See e.g. Bruce Ackerman, supra note 10; Wen-Chen Chang, supra note 3. See also Francisco F. Martin, Our Constitution as Federal Treaty: A New Theory of United States Constitutional Construction Based on an Originalist Understanding for Addressing a New World, 31 HASTINGS CONST. L.Q. 269 (2004) (arguing that the Constitution as a federal treaty must be construed in the "International Legal Constructionism ). 44 Deborah Z. Cass, supra note

18 The function of transnational constitutionalism in managing a global market has not only affected transnational legal cooperation but also led to a wider range of constitutional convergence that we describe earlier. To illustrate, a broader market invites transnational legal frameworks as it demands simultaneously these market-participating nations to provide similar if not the same market-oriented rules and rights. And the compliance with transnational legal frameworks would facilitate even more national receptions of liberal, market-oriented rights and constitutional arrangements. 45 It should not be surprising that some countries rewrote or revised their constitutions before or after their entries into the WTO. For example, Thailand rewrote the Constitution following its entering into the WTO and adopted several institutional measures to provide a fairer investment environment. 46 China, before her entry application to the WTO was approved, took actions to amend her Constitution to earn the trust from the world that it would genuinely abide by the rule of law and show due respects to private property. 47 More strikingly, amending the Constitution especially ensuring an independent judiciary that is capable of maintaining trade-related rights and transaction orders was one of the demanded actions by international financial agencies to resolve Indonesia s economic crisis Ernst-Ulrich Petersmann, supra note 39. See also Frank Michelman, Constitutionalism, Privatization, and the Globalization: Whither the Constitution?, 21 CARDOZO L. REV (2000). 46 Borwornsak Uwanno & Wayne D. Burns, The Thai Constitution of 1997: Sources and Process, 32 U. B. C. Rev. 227, 243 (1998). 47 Marc Rosenberg, The Chinese Legal System Made Easy: A Survey of the Structure of Government, Creation of Legislation, and the Justice System under the Constitution and Major Statues of the People s Republic of China, 9 U. MIAMI INT L & COMP. L. REV. 225, (2000). 48 By the spring of 2002, the Indonesian Constitution was amended at least three times. See generally Matthew Draper, Justice as a Building Block of Democracy in Transitional Societies: The Case of Indonesia, 40 COLUM. J. TRANSNAT'L L. 391 (2002). 17

19 2. Substitution of absolute sovereignty In the course of modern constitutionalism, sovereignty was first invented as a great legal concept (or fiction) to help transform monarchical regimes of the eighteenth century into parliamentary or popular democracies. 49 Sovereignty is constructed as a fictional personality of a nation with an absolute will/power, while a constitution is a founding legal expression of highest order by such an absolute will/power. The democratization of the eighteenth century made possible for national sovereignty to be represented by a monarch, a parliament or a people. Monarchial constitution-making, parliamentary constitution-making and most importantly, popular constitution-making became conceptually possible and institutionally available to modern constitutional development. As a result, a constitution became strictly associated with a nation-state of absolute sovereignty. A constitution without a state is never possible. 50 This way of constructing constitutions and sovereign nations, however, has restricted our imagination of constitutions and actually undermined modern constitutional functions. It overemphasized the role of state in any constitution-related undertaking and denied the possibility of constitution-making across national borders. Worse yet, by making it nearly impossible any creative substitute for state in transnational cooperation, it created a state-monopoly situation. 51 Consequently, any transnational cooperation would neither be established nor function well should any state becomes 49 Martin Loughlin, Ten Tenets of Sovereignty, in SOVEREIGNTY IN TRANSITION 55-86, 57-59, (Neil Walker ed., 2003). 50 But a state without a constitution, without a written constitution to be exact, is nevertheless quite possible especially in common law traditions. It is however in sharp decrease. VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW (1999). 51 Bardo Fassbender, Sovereignty and Constitutionalism in International Law, in SOVEREIGNTY IN TRANSITION (Neil Walker ed., 2003) (arguing that the concept of sovereignty became state-centered and entailed state equality and sovereign equality after World War II). 18

20 uncooperative; any human rights abuses that happened in one national border should free from any external investigation or sanction; and neither would any domestic institutional arrangements that may substantially affect international market functions be the business of international community. These resonated very well to the development of international law ever since World War II. But the recent rise of transnational constitutionalism has changed all that. First and foremost, the making of the European Constitution for the first time disconnected constitutions with nations. A constitution now can be made upon something other than a nation. 52 Secondly, possible transformations of some transnational economic frameworks into more solid or even quasi-constitutional regimes altered our traditional understandings that constitution is political, and that only political entities can make constitutions. Economic or non-economic cooperation could take place in constitutional frameworks. 53 More importantly, the fact that some and quite important some of these transnational constitutions or quasi-constitutional arrangements have now exercised either directly applicable effects or strong influence upon their participating members is evident of the gradual erosion of absolute sovereigns. The recent progress of international humanitarian laws and the practice of many international war crime tribunals that handled internal genocide and civil war devastations are another proof. They stand against the assumption that rights are only ensured by national constitutions. Rather, in today s transnational frameworks, constitutional rights of one 52 Neil Walker, Late Sovereignty in the European Union, in SOVEREIGNTY IN TRANSITION 3-32 (2003) (arguing a theoretical perspective in that constitutions may rise without sovereigns). 53 Deborah Z. Cass, supra note 15. See also M. P. MADURO, WE THE COURT: THE EUROPEAN COURT OF JUSTICE & THE EUROPEAN ECONOMIC CONSTITUTION (1998). 19

21 nation may be ensured even more effectively by other nations or by international legal frameworks without sanctions of this very nation Facilitation of multiple dialogues The last but not the least function that transnational constitutionalism provides is the facilitation of multiple dialogues on a global scale. In the past, sovereign nations dominated international arena, and local opinions would have to be screened and selected by a series of representation. In most countries, executive branches and their bureaucracies bore a more active role in representing their people s opinions outside. 55 Whether or not they would be checked sufficiently with legislative powers, their democratic legitimacy would be less direct, not to mention high risks that concerns and opinions of ethnic minorities and disadvantaged groups would be excluded. As a result, many international treaties, transnational arrangements and decisions had for a long time been regarded as systematically biased and partial. It was even more so for some localities and disadvantaged groups. The international regime thus suffered great distrust and democratic deficit. 56 But in the age of transnational constitutionalism, the dominance of states especially some very powerful states and their past state monologue would be dismantled. It has advanced in many different ways. First, the creation of 54 One example of domestic laws is the Alien Torts Claims Act of the United States. For further discussions, see Harold Koh, supra note 20. In addition, an increasing use of international human rights treaties or customary international laws serves similar purposes. See e.g. Laura Dalton, Stanford v. Kentucky and Wilkins v. Missouri: A Violation of an Emerging Rule of Customary International Law, 32 WM. & MARY L. REV. 161 (1990) (arguing that the Supreme Court should take the international law of fundamental human rights into consideration); Gordon A. Christenson, Customary International Human Rights Law in Domestic Court Decisions, 25 GA. J. INT'L & COMP. L. 225 (1996) (arguing that courts should use the choice of law analysis and take the global legal order into consideration). 55 See generally STEINER & ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS (2 nd, 2000). 56 Id. 20

22 transnational constitutions, such as the European Constitution, provides more direct accesses from bottom up and bypasses traditional state bureaucracy. By participating in transnational politics of larger framework, local groups are now perhaps unexpectedly more empowered to take position against their local or national governments with the backup of transnational governing agencies or support groups in other nations. 57 Local and transnational politics becomes more complex and contested as more diverse groups enter into their platform. Secondly, various simultaneously risen transnational constitutions or quasi-constitutional frameworks would challenge traditional power balances among states and make one-state dominance or any institutional monologue difficult 58. For example, while the United States is seen as the most powerful state in the current international makeup, when it works with the EU or NAFTA, one would find that Italy or Spain in case of the EU and Mexico in case of NAFTA wield the same if not more powerful influence upon its own interests. This is also true within the same transnational framework. While Germany, France or Japan may be seen as powerful states, each would have to come to terms with other less powerful states on an equal footing in dealing with regional matters. 57 Marc Landy & Steven M. Teles, Beyond Devolutions: From Subsidiarity to Mutuality, in THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND EUROPEAN UNIOn (Kalypso Nicolaidis & Robert Howse eds., 2001) 58 Claire L'Heureux-Dubé, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, 34 TULSA L.J. 15 (1998) (arguing that consideration of foreign decisions is increasingly popular for courts throughout the world, and that it is not always courts of most powerful countries become most powerful in competing judicial dialogues). As a matter of fact, two constitutional courts, that of Hungary and that of South Africa, became most recognizable in this area. See e.g. Devika Hovell & George Williams, A Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa, 29 MELB. U. L. REV. 95 (2005) (arguing that the Australian courts should engage with international law more closely like South Africa); Duc V. Trang, Beyond the Historical Justice Debate: The Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary, 28 VAND. J. TRANSNAT'L L. 1 (1995). 21

23 This political reconfiguration also applies to transnational government institutions or non-governmental groups. The recently exciting and well documented dialogues between various courts are one great example among the many. 59 At times, conversations between transnational courts and national courts may be intense. For instance, some recent dialogues between the ECJ and the German Constitution Court regarding direct applicability of EU rules if in conflict with the German Constitution were evident. 60 But these thoughtful conservations may result in much better understandings of transnational norms and perhaps unexpectedly, deliver some degree of democratic deliberation into transnational legal regimes. 61 The last and somehow a bit unnoticeable dialogue facilitation function that transnational constitutionalism provides is through the convergence of national constitutions. This has enabled various nations to collaborate more smoothly. In the past, the mostly cited or referred constitutions and courts were perhaps rightly the U.S., German, French Constitutions and their respective courts. At present, however, many more national constitutions are cited or referred to, and they do not always belong to traditional powerful states. New constitutions and their interpretive courts such as that of South Africa, Hungary, Poland, or South Korea are some of the examples. 62 Students of comparative constitutionalism are fortunate to have more diversified and democratized sources for their digestion. 59 See discussion supra Part II.A.2. and accompanying notes. 60 For a brief introduction of the struggle between the two courts, see Jenny S. Martinez, supra note See discussion infra Part III.B. 62 See discussion supra Part II.A.2. 22